Subject-matter Jurisdiction – 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370

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7^th Circuit Court of Appeals

Case Name: Democratic Party of Wisconsin v. Robin Vos, et al.,

Case No.: 19-3138

Officials: WOOD, BARRETT, and SCUDDER, Circuit Judges.

Focus: Subject-matter Jurisdiction – 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370

In 2018, Democrats Tony Evers and Josh Kaul were elected as the governor and attorney general of Wisconsin. Both replaced Republican incumbents. Immediately after the election, while Wisconsin still had a Republican governor, the Republican-controlled legislature enacted two laws, 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370 (“Acts”), which strip the incoming governor and attorney general of various powers and vest legislative committees that remained under Republican control with formerly-executive authority. The changes effected by the Acts include prohibiting the governor from re-nominating potential appointees who have been rejected once by the legislature; giving the legislature authority to suspend an administrative rule multiple times; removing the governor’s ability to appoint the chief executive officer of the Wisconsin Economic Development Corporation; adding legislative appointees to the Economic Development Corporation; requiring that the attorney general obtain legislative approval before withdrawing from a lawsuit filed by the state government or settling a lawsuit for injunctive relief; and granting the legislature the unrestricted right to intervene in litigation to defend the constitutionality or validity of state law.

Dismayed by these measures, the Democratic Party of Wisconsin (“Party”) and several of its individual members brought suit in federal court under 42 U.S.C. § 1983 claiming violations of the First Amendment, the Fourteenth Amendment’s Equal Protection Clause, and the Guarantee Clause of Article IV, Section 4 of the United States Constitution. The defendants are the following: several members of the Wisconsin legislature (“legislative defendants”); the Secretary of the Wisconsin Department of Administration; now-Governor Evers; and now-Attorney General Kaul. (Although he was a nominal defendant, Governor Evers, along with Joel Brennan, the Secretary of the Department of Administration, initially filed a brief supporting the plaintiffs and opposing dismissal. Attorney General Kaul stayed out of the fray. None of those three is participating in this appeal.) The district court granted the legislative defendants’ motion to dismiss for lack of subject-matter jurisdiction, concluding that the plaintiffs “haven’t pointed to any concrete harms they have suffered or will suffer because of Acts 369 and 370” and “are not entitled to any remedy under the United States Constitution. Any judicial remedy for the harms alleged in this case must come from the courts of Wisconsin.” We affirm.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.